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Friday, January 25, 2002

Memo, Gonzales: the quaint Geneva Conventions

Today, Attorney General to-be Alberto Gonzales writes a four page memo for President Bush. It is motivated by a recent request by the Secretary of State to revise policy, and apply GPW with with regards to Taliban and al Qaeda (Powell's opinion will be published in a memo dated tomorrow).

Gonzales' memo is aimed at convincing the President not to take the advice of his Secretary of State. He is urged not reverse his decision, and to continue to deny POW status to detainees.

In the memo, Gonzales explores some of the negative aspects of refusing to treat prisoners of war as Prisoners of War. He describes the legal basis of the decision

Indeed, as the statement quoted from the administration of President George Bush makes clear, the U.S. will apply the GPW "whenever the hostilities occur with regular foreign armed forces (his emphasis).
He acknowledges the effect that this determination will have upon military culture:
A determination that GPW does not apply to al Qaeda and the Taliban could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.
However, he concludes that "our military remains bound to apply the principles of GPW [Geneva Conventions on Prisoners of War] because that is what you have directed them to do." Unfortunately, he does not address how this directive is to be interpreted in light of the directive from two paragraphs previous, in which the military are directed not to apply the principles of GPW.

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In the memo, Gonzales also explores the benefits of not observing the Geneva Convention on POWs. He states that disregarding the convention would "preserve flexibility", and that allowing some wriggle-room in the definition of war crimes could prevent war crimes:

... the war against terrorism is a new kind of war. ... The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians.
He goes on to describe certain provisions of the conventions as quaint
In my judgement, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e. advances of monthly pay), athletic uniforms, and scientific instruments.
He does not elaborate to say whether he also considers other provisions of GPW "quaint", such as access to water, access food that isn't rotting and spoilt, freedom from torture and sexual humiliation, the right not to be raped or sodomised against one's will with foreign objects, access to legal assistance, the right not to be forced into signing false confessions, etc. Perhaps this is some of the "uncertainty in the status of adversaries" he referred to previously.

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In refusing to observe the GPW, he notes that the natural law of reciprocity upon which it is based is undermined. If the U.S. does not obey international law, there is no reason for any other country to:

  • The US could not invoke the GPW if enemy forces mistreat coalition forces;
  • The War Crimes Act could not be used against the enemy; and
  • Other countries may follow the US lead and also look for "loopholes" in the GPW that they may also exploit.
He also notes that some other countries will not come on board with the new paradigm (perhaps "old Europe"), and in fact will take exception to the U.S. stance. He states
our position would likely provoke widespread condemnation among our allies and in some domestic quarters.
His primary concern in this matter is that such countries "may be less inclined to turn over terrorists or provide legal assistance to us if we do not recognize a legal obligation to comply with the GPW". Nonetheless, he concludes
On the balance, I believe the arguments for reconsideration and reversal [of the decision not to observe GPW] are unpersuasive.